Bonum Certa Men Certa

The Patent Trial and Appeal Board (PTAB) Lives on and People Whom Patents Were Conceived for (Not Lawyers) Are Happy

Serving scientists, not law firms

Some justice



Summary: The Supreme Court ruling in Oil States v Greene’s Energy (putting aside SAS Institute v Iancu for now) received praises from those who care about science and technology rather than patenting and litigation

THE Supreme Court's (SCOTUS) decisions that will impact USPTO policy (guidelines) were covered here twice before [1, 2]. We focused on Oil States because it was the far more important decision (among a pair). We have meanwhile uploaded a local copy of the Oil States decision [PDF] (33 pages). We want to ensure it remains accessible to us in the rare event of SCOTUS downtime. The decision is not very long. Far more has been written about it and there's not so much actually in it. To a lesser degree, SAS Institute v Iancu got some coverage; a lot of patent-centric news sites were preoccupied/obsessed with these decisions (we focused on UPC and EPO scandals instead).



"The decision is not very long."The outcome of Oil States was not surprising. Not even the dissent from Justice Gorsuch. All this was more or less expected and matched our predictions. PTAB is good (adds value to the United States), it is reasonable in line with constitutionality, and it is here to stay. Oil States made our week.

In fact, thanks to PTAB, as noted by TechDirt about a week ago, a patent troll and legal bully lost its patent. It is a thug in more than one way (blackmail as well as SLAPP) and here's what happened to it:

Remember GEMSA (Global Equty Management (SA) Pty. Ltd.)? That's the Australian patent troll who "won" a Stupid Patent of the Month award from EFF for its silly patent (US Patent 6,690,400 on "virtual cabinets representing a discrete operating system." GEMSA sued a bunch of companies, including Airbnb and Zillow for supposedly violating the patent. Oh, and then it sued EFF in Australia, getting an order from the court demanding that EFF take down its article and barring EFF from ever publishing anything about any GEMSA patents.

That kinda thing is not going to fly in the US, and so EFF went to court in the US, seeking declaratory judgment that such an Australian court order was totally unenforceable in the US under the SPEECH Act. Late last year, the court gave a thorough and complete victory to EFF, making it clear that GEMSA could not, in any way, hope to enforce its Australian order in the US, as it clearly would violate EFF's First Amendment rights.

[...]

The PTAB laughed off GEMSA's argument that the original owner of the patent, Flash Vos, somehow "moved the computer industry a quantum leap forward in the late 90's" by pointing out that GEMSA "has put forth no evidence that Flash Vos or GEMSA actually had any commercial success." Ouch.

I'm curious if GEMSA will now seek to sue the US Patent Office in Australia as well...


Notice the headline from TechDirt, which calls it "Bullshit Patent". It is a software patent. It's gone now. Thanks to PTAB. We first wrote about it 6 days ago. Over the years we have received threats and SLAPP attempts from various patent bullies. We received one less than one week ago. It's becoming quite routine. It ought to stop. Well, PTAB has the power to revoke patents, which in turn disarms those kinds of actors. The EFF has relatively deep pockets; we do not.

"Over the years we have received threats and SLAPP attempts from various patent bullies. We received one less than one week ago. It's becoming quite routine. It ought to stop."About a month ago, as readers may recall, a firm that had devised a "scam" to bypass PTAB sent us a legal threat. It sent this by electronic mail as well as special delivery to our door (Federal Express). Not exactly pleasant. Is this what one gets, even as an individual, for writing about the anti-PTAB brigade?

Geeks should unite in support of PTAB and against PTAB bashers. Technology companies overwhelmingly support PTAB. Geeks' sites too care about PTAB (here's one that published "SCOTUS: Patent Reviews Are Constitutional" a few days ago).

Speaking of the EFF, here is its slightly belated response to the decision, composed by Daniel Nazer. A few days later he wrote:

In one of the most important patent decisions in years, the Supreme Court has upheld the power of the Patent Office to review and cancel issued patents. This power to take a “second look” is important because, compared to courts, administrative avenues provide a much faster and more efficient means for challenging bad patents. If the court had ruled the other way, the ruling would have struck down various patent office procedures and might even have resurrected many bad patents. Today’s decision [PDF] in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC is a big win for those that want a more sensible patent system.

Oil States challenged the inter partes review (IPR) procedure before the Patent Trial and Appeal Board (PTAB). The PTAB is a part of the Patent Office and is staffed by administrative patent judges. Oil States argued that the IPR procedure is unconstitutional because it allows an administrative agency to decide a patent’s validity, rather than a federal judge and jury.

Together with Public Knowledge, Engine Advocacy, and the R Street Institute, EFF filed an amicus brief [PDF] in the Oil States case in support of IPRs. Our brief discussed the history of patents being used as a public policy tool, and how Congress has long controlled how and when patents can be canceled. We explained how the Constitution sets limits on granting patents, and how IPR is a legitimate exercise of Congress’s power to enforce those limits.


Since Public Knowledge, Engine Advocacy, and the R Street Institute participated in it alongside the EFF we should not give all the credit only to the EFF, which sometimes cross-posts at TechDirt. Here is what TechDirt wrote about this decision 4 days ago. Mike Masnick, the sites's founder, authored it:

Supreme Court Says Of Course The Patent Office Can Admit It Made A Mistake And Dump Bad Patents



For the second time in two years, the Supreme Court has needed to weigh in and note that, of course, the US Patent Office can take another look at the crappy patents it already granted, recognize its mistake, and void the patents. A little less than two years ago, it looked at what standards could be used by the Patent Trial and Appeal Board (PTAB) using the Inter Partes Review (IPR) system created by the America Invents Act of 2010. The latest case was much more broad: challenging whether the IPR/PTAB process itself was Constitutional.

The basic idea behind the IPR process was an admission that the USPTO is historically bad at properly reviewing patents before granting them. It grants a lot of bad patents. The IPR process allows anyone to present evidence to the PTO that it made a mistake and granted a patent that should never have been granted. If the PTAB is convinced, it can invalidate the patent. Seems pretty straightforward. Except that the usual patent lovers (mainly patent trolls and big pharma) insisted that this was some sort of unconstitutional taking of property, without the review of a court. This is wrong for a whole bunch of reasons -- starting with the incorrect view of patents as traditional "property."

The Supreme Court ruled on the issue, in a case called Oil States Energy Services v. Greene's Energy Group, and basically said that of course the PTAB can invalidate patents this way. Justice Thomas wrote the majority opinion with a 7 - 2 split (Gorsuch and Roberts dissented). The key issue was whether or not invalidating patents is reserved only for the courts, and most of the Justices don't see any support for that. In short, the majority opinion says what the Patent Office gives, the Patent Office can take away...


It didn't take long for Matt J. Krupnick (Red Hat) to write about this at OpenSource.com (a Red Hat site). To quote the opening paragraphs:

This week’s Supreme Court ruling in Oil States v. Greene’s Energy was an important victory for technology companies and innovators who face threats of patent litigation from entities that abuse the patent system by seeking to extract value from innovators and companies that create jobs.

In Oil States, the Court ruled against a constitutional challenge to the administrative process at the U.S. Patent and Trademark Office (PTO) for disputing the validity of previously-granted, but questionable, patents—the type that are most used by so-called patent trolls. This process called inter partes review (IPR), has become an important tool for combating frivolous infringement assertions based on likely invalid patents in a way that is much less expensive than testing those patents in federal court.

Congress created the IPR process with the America Invents Act of 2011 (AIA) in order to clean up what Congress saw as an abundance of improperly granted patents, which are used by patent trolls to extract money from innovators. Since the process was implemented in 2012, more than 7,000 petitions have been filed, primarily to review dubious patents in the computer and high-tech field, and more than 1,300 claims have been ruled invalid.


All in all, as expected, anyone that actually practices anything other than litigation seems happy with this decision. We congratulate the court for making the right decision for the country. In our next few posts we'll show how the patent microcosm reacted. And yes, that included judge-bashing vitriol.

Recent Techrights' Posts

Techrights Does Not Compete With LLM Slop, It Exposes the Bastards, Plagiarists and Scammers Who Do That
People like Scam Altman, still facing a lawsuit from his own sister for sexual abuse against her
Slopwatch: Planet Ubuntu Became LLM Slop and Some People Fail to See the Immorality of Plagiarism
it lessens the incentive for people to publish real articles
Microsoft Layoffs Again in Bay Area
Microsoft relies on people's false belief that being "in LinkedIn" will get you a job; well, seems like even working inside LinkedIn really sucks and you lose the job
 
The "AI" (Slop) Bubble Already Popped, But It's Not an Overnight Collapse
where Microsoft put its money
No More Steven Astorino at IBM, Chatter About Weekly/Nonstop Layoffs at IBM
What happened? Good luck guessing.
Looking at Corruption in Europe, Going Beyond the EPO
Expect a new series to kick off very soon
Slopwatch: Security SPAM and LLM Slop for SEO and FUD Purposes, Perpetually Tarnishing the Perception of Linux and (Open)SSH Security
A lot of this Fear, Uncertainty, Doubt (FUD) comes from Microsoft and its LLMs
Links 30/05/2025: Google's LLM Slop Pushers Are Killing Journalism and Shira Perlmutter Fails to Stop Bribed Regime From Legalising Plagiarism (in "AI" Clothing)
Links for the day
Links 30/05/2025: Offline Arts and "Threshold of Patience"
Links for the day
Signing Off Serious Lies With a Statement of Truth is No Joking Matter
It's not hard to see what's happening here
Links 30/05/2025: LLM Slop Already Ingests and Vomits Its Own Garbage, Facebook Exec Admits Copyrights a Concern Too
Links for the day
Mass Layoffs at Microsoft Result in More Whistleblowers From Microsoft
Microsoft's predatory pricing is further
EPO Poll: 68% Dissatisfied With Quality of Slop (Wrongly Framed as "AI") for Patent Classification
Slop does not work, it's just falsely advertised with extra hype (funded by slop pushers that sponsor the major media)
Big Crowds Gather to Learn About Software Freedom From the Man Who Started GNU/Linux in 1983
"It was a great success"
Gemini Links 30/05/2025: Fighting Against the Bad News, and Slop is Dehumanisation Disguised as "Intelligence"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 29, 2025
IRC logs for Thursday, May 29, 2025
Links 29/05/2025: Chinese Cracking Against EU Institutions (Prague), More Assaults on Media and Its Funding Sources
Links for the day
EPO Workers Caution That the Officials Are Still Illegally Trying to Replace Staff With Slop (to Lower Quality and Validity of European Patents)
Nobody in Europe voted for any of this
Links 29/05/2025: US Health Deficit and Malware Disguised as Slop Generator
Links for the day
Links 29/05/2025: Turtle Roadkill, Modern 'Tech' as a Sting
Links for the day
Thanks for All the Fish, Linux Format
people who once wrote for it (or for other magazines) comment on the importance of this news
People's Understanding of the History of GNU/Linux is Changing
RMS is not a radical, he's just clever enough to see and foresee what's going on
Microsofters Were Scheming to Take Over This Entire Web Site (in Their Own Words!)
Money gets spent censoring/deplatforming people who speak about real issues; no money gets spent actually tackling those underlying issues
Bicycles for the Minds and the Story Harrison Bergeron
"The goal of having people in charge of the tools they use and that the tools should amplify ability" has long been abandoned
Links 29/05/2025: YouTube Problem and Giant Privacy Hole in Microsoft OneDrive
Links for the day
[Video] Cory Doctorow Explains DMCA: DRM in the Browser (or Webapp) Will "Make It a Felony to Protect Your Privacy While You Use It."
Pycon US Keynote Speaker Cory Doctorow
United States Courts With Sworn Testimonies Are on Our Side, We'll Present the Same Here
Chronicling what happened is a moral imperative
Serial Sloppers Ruin and Lessen the Incentive to Cover "Linux"
The Serial Sloppers (SSs) ought to be named and shamed, but almost nobody does this
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 28, 2025
IRC logs for Wednesday, May 28, 2025
Links 28/05/2025: 'Emulation Layers' (Measurements and Linguistics), Libraries, and Discomfort
Links for the day
Links 28/05/2025: More Arrests for Bitcoin-Connected Torture and Prosecutions for Dieselgate-Linked Executives
Links for the day
Even Microsoft (MSN) Covers Richard Stallman's Public Talk in Milan 2 Days Ago
He spoke in Spanish earlier this month (Alicante)
Gemini Links 28/05/2025: Techo-authoritarianism With Slop Plagiarism and "No Online June" (Going Offline)
Links for the day
Links 28/05/2025: GitHub MCP Exploited and MathWorks Discovers Huge Windows TCO
Links for the day
Very High Attendance Level at Richard Stallman's Talk Shows People Can Relate to His Message
Smear campaigns have their limits
Gemini Links 28/05/2025: Celsius-Fahrenheit, Endless Scrolling/Infinite Scrolling, and Trapping LLM Slop Bots
Links for the day
Prison gate backdrop to baptism by Fr Sean O'Connell, St Paul's, Coburg
Reprinted with permission from Daniel Pocock
More Photos From This Week's Milan Talk by Richard Stallman
The posts are in Italian, not English
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 27, 2025
IRC logs for Tuesday, May 27, 2025